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Resources For

Pay & Leave Claim Decisions

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Office of the General Counsel

Date: November 16, 1998
Matter of: [xxx]
File Number: s9700543

OPM Contact: Murray M. Meeker

The claimant, a former employee of the [agency], requests that
192 hours of annual leave which was forfeited at the end of the
1996 leave year, be restored. For the reasons discussed herein, the
claim is granted, subject to the conditions in this decision.

On June 10, 1996, the claimant filed a written request for
annual leave for the period from November 29, 1996, to January 3,
1997. The claimant's supervisor approved the claimant's request.
However, on November 28, 1996, the day before the claimant was
scheduled to begin his annual leave, he became ill, and on November
29, 1996, the claimant notified his supervisor of his illness and
requested that he be placed on sick leave instead of annual leave.
The claimant's supervisor approved the request. The claimant
subsequently submitted medical certification concerning his absence
from November 29, 1996 through January 3, 1997, and on January 6,
1997, the claimant requested the restoration of the annual leave
that he had forfeited at the end of the 1996 leave year.

On April 28, 1997, GPO denied the claimant's request, and on
April 30, 1997, the claimant filed a grievance under the provisions
of the negotiated grievance procedure of the Master
Labor-Management Agreement between the Joint Council of Unions,
GPO, and the United States Government Printing Office (Agreement).
In accordance with the Agreement, when the claimant's grievance was
denied at the third-step, the [xxx] Union, Local [xxx] (Union), had
the opportunity to seek a decision from the General Accounting
Office (GAO)(1) in lieu of arbitration.
See Agreement, Article XIV, Section 9d

In general, the Office of Personnel Management (OPM) may not
review a claim that is subject to a negotiated grievance
procedure under a collective bargaining agreement. SeeCarter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir.
1990) (enbanc), cert. denied,
498 U.S. 811 (1990). However, as noted above, the Agreement
expressly provides that disputes involving the restoration of
forfeited annual leave shall be submitted to GAO. The agency
acknowledges that the Agreement provides for the filing of leave
restoration claims with OPM, but asserts that the union did not
provide timely notice of its decision to file a claim, and, that,
as a consequence, this office lacks jurisdiction to settle the
claim. See Agreement, Article VII, Section 10d(1). Out of deference
to the labor-relations process, we will not attempt to resolve this
issue. Rather, this decision addresses only the merits of the
employee's claim for the restoration of annual leave. If the agency
ultimately decides to deny the claimant's restoration request on
grounds related solely to the Agreement, the claimant, the union,
and the agency may settle the matter in accordance with the terms
of the Agreement.

The union reported that when the claimant became ill, he called
his supervisor to notify him of the illness and asked that the
annual leave be changed to sick leave. The union reported further
that the requested sick leave was approved at that time in lieu of
the scheduled annual leave. The agency concurred with this factual
report, but explained that when the claimant sought restoration of
his forfeited annual leave, it requested that the claimant provide
additional information. See 5 C.F.R. 630.403 and
Michael J. DeLeo, B-207444, October 20, 1982 (for an
absence in excess of 3 workdays, or for a lesser period when
determined necessary by an agency, the agency may require a medical
certificate, or other administratively acceptable evidence as to
the reason for the absence).

While the agency acted properly in requesting additional
information, the agency acted improperly in determining that the
additional documentation was inadequate. SeeWade v.
Department of the Navy, 829 F.2d 1106, 1109 (Fed. Cir. 1987)
(agency was required to grant sick leave where the information
provided by the employee met the requirements in 5 C.F.R. 630.401).
Generally, where a physician's statement opines that an employee is
unable to work, an agency's failure to approve the employee's leave
request is not justified. Schultz v. United States Navy,
810 F.2d 1133, 1136 (Fed. Cir. 1987). It is not enough that an
agency physician is dissatisfied with the explanation provided by
the employee's physician, particularly where the agency physician
has never examined the employee. SeeWade v.
Department of the Navy, supra, at 1108.

It is well established that an employee's annual leave shall be
restored where the employee was prevented from using his annual
leave because of illness. Indeed, 5 U.S.C. 6304(d)(1)(C) expressly
provides that annual leave which is lost because of an employee's
sickness shall be restored. Accord, Robert J.
Stacklin, B-226927, September 25, 1987; Walter
Schmidt, B-223238, February 27, 1987; and Bruce F.
Scott, B-218728, December 10, 1985. SeeGayden G.
McMain, B-182040, November 27, 1974 (the purpose of P. Law No.
93-181, 5 U.S.C. 6304, was to cover situations where employees have
scheduled annual leave in advance and sudden illness prevents its
use).

Accordingly, the claim is granted. This settlement is final. No
further administrative review is available within OPM.